Category Archives: Water Quality

ABRA Members Sue Virginia Over ACP Approvals


From the ABRA Newsletter, January 18, 2018:

A coalition of environmental and conservation organizations, including 12 members of ABRA, filed a legal challenge to the Virginia State Water Control Board’s December 12 approval of a water quality certification for the Atlantic Coast Pipeline (ACP). The suit, filed with the Fourth Circuit Federal Court of Appeals late on January 18 by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates on behalf of the client group, charges that the Board’s decision failed to consider the impacts of the project on water quality in Virginia sufficiently to meet the requirements of the Clean Water Act.

The plaintiffs include the following ABRA members: Appalachian Voices, Chesapeake Climate Action Network, Cowpasture River Preservation Association, Friends of Buckingham, Highlanders for Responsible Development, Jackson River Preservation Association, Shenandoah Riverkeeper, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, the Sierra Club, Virginia Wilderness Committee, and Wild Virginia. In separate legal actions, also taken on January 18, SELC on behalf of the Sierra Club, Defenders of Wildlife and Virginia Wilderness Committee filed a legal challenge to a decision by the U.S. Fish and Wildlife Service, and a legal challenge on behalf of the Sierra Club and The Virginia Wilderness Committee to a decision by the National Park Service. The agencies both issued permits for the pipeline. These decisions further highlight agency failures to adequately review crucial information in a process that is being driven by developers rather than regulators.

A copy of the lawsuit challenging the SWCB decision will be posted on the ABRA website on January 19, 2018.

Virginia DEQ Shuts Down Public Input, Curbs Water Board in 401 Process

From the ABRA Newsletter, January 18, 2018:

The Virginia Department of Environmental Quality (DEQ) has proclaimed that there is to be no further input from the public in the final stages of water quality certification (under Section 401 of the federal Clean Water Act) for the Atlantic Coast Pipeline, and has also purported to limit the further role of the State Water Control Board in the process.

This astounding action came to light in a posting on the agency’s website, apparently made on Friday, January 12 (the final day of the McAuliffe Administration). The pronouncement contradicts the expressed understanding of members of the SWCB regarding the Board’s continuing role in the process, as well as of the need for further public input, based on a transcript of comments made by Board members at the December 12 SWCB meeting.

The DEQ posting states, in the following excerpts (portions bolded for emphasis):

The certification approved by the Board and reviewed by our attorneys is in place and becomes effective upon the issuance of the Department’s report to the Board and the public. By law the Erosion, Sediment and Stormwater approvals upon which the effective date is conditioned are approved by certified staff and those approvals are not under the State Water Control Board’s purview.

No additional information is being accepted from the public. DEQ has not imposed any specific deadlines on ACP for the submittal of information other than those included in the certification. The deadline for submitting information necessary for the certification to become effective is at the discretion of ACP. Therefore, an estimate for the delivery and publication of the written report to the board has not been made.

Upon submittal of the report documenting approval of the Supplemental Karst Evaluation Plan annual standards and specifications, erosion and sediment control plans, and stormwater management plans, Virginia’s Section 401 water quality certification for activities in upland areas becomes effective. No further action by the board is required for the certification to become effective. As provided in the certification, the board may, after review of the report, consider further actions on the certification. The matter is before the board at its discretion without additional public comment on whether further action is warranted. When or if the certification will be an agenda item at a future board meeting is unknown at this time.

DPMC Seeks Urgent Action From Governor Northam on Pipelines

On January 17, 2018, Dominion Pipeline Monitoring Coalition sent a letter to Gov. Northam asking that he take swift and decisive action to restore integrity and transparency to Virginia’s regulatory reviews of the Mountain Valley Pipeline (MVP) and the Atlantic Coast Pipeline (ACP).

DPMC is calling on the Governor to require his administration to take three specific actions, to meet the law and satisfy his stated intentions:

  1. His environmental officials must use their authority to review and approve or disapprove waterbody crossings covered by the Corps of Engineers’ general permit.
  2. His environmental officials must prohibit any and all activities related to construction of the pipelines that might affect water quality unless and until all requirements of the WQCs are met.
  3. His environmental officials must ensure that before the ACP certification is deemed effective:
  • a) remaining plans submitted by the company are made available to the public for review and comment and that DEQ considers and addresses those comments,b
  • b) DEQ makes a final recommendation to the SWCB, based on its review of the final plans and of public submissions, and
  • c) DEQ requests formal Board action on its recommendation.

The Northam administration now has the authority and duty to uphold the principles Mr. Northam previously outlined as the guide for determining whether the pipeline proposals were properly and fairly handled by the State of Virginia:

  • that the outcome of those deliberations must be based on scientific evidence
  • that proceedings must be conducted in a transparent manner, and
  • that approvals must be denied unless actions can be fully protective of Virginia’s environment and its citizens.

Unfortunately, the Department of Environmental Quality (DEQ) has betrayed the principles the Governor has espoused. DEQ has also disregarded intentions and expectations the State Water Control Board (SWCB) expressed when it considered these proposals in December of 2017. (see DEQ Statement on Process)

We call on all Virginians to let the Governor know you support the principles he’s outlined for these processes and want his to make sure they are followed by DEQ. You can do so by emailing him c/o his Chief of Staff at clark.mercer@governor.virginia.gov or calling 804-786-2211.

North Carolina Delays ACP Again

Southeast Energy News reported on January 10, 2018, that the Atlantic Coast Pipeline has been delayed – again – by North Carolina regulators.

“North Carolina regulators Wednesday announced the latest round of setbacks for the 600-mile Atlantic Coast Pipeline — delaying a decision on the project’s clean water certificate until as late as February and postponing several other environmental permits. Virginia-based Dominion Resources had hoped to break ground last year on the $5.5 billion pipeline, slated to transport natural gas from West Virginia into Virginia and the Tar Heel state. Duke Energy, which seeks fuel for its gas-fired power plants, is the venture’s second major investor. The feds approved the project in October, and just a few regulatory hurdles remain in the Virginias. But in North Carolina, Gov. Roy Cooper’s administration has moved more slowly — soliciting nearly 24,000 citizen comments on the pipeline and repeatedly asking for more information about its impact on air and water quality. So far, regulators here have issued only one of several licenses Dominion needs to begin construction.”

The article lists the status of five tests the pipeline must pass to become reality in North Carolina: tests on air quality, rivers and streams, sedimentation and erosion, polluted runoff, and environmental justice.

Read the full article here.

Legislators Introduce Pipeline Legislation

Delegate Chris Hurst, Delegate Sam Rasoul, and Senator John Edwards held a joint press conference on January 11, 2018, to discuss legislation they’ve introduced to the 2018 Virginia General Assembly aimed at protecting water quality and landowner rights from the construction of fracked-gas pipelines, such as the proposed Mountain Valley and Atlantic Coast pipelines. The bills would require the Department of Environmental Quality to perform robust water permitting and impact review, and restrict the ability of pipeline companies to access private property,

The bills are (click on the links to see the full bill):

  • HB 1187 (Curtails the ability of a natural gas company to enter upon real property for the purpose of conducting surveys and other tests for its proposed line or the location of facilities) and HB 1188 (Requires the operator of any natural gas pipeline of a certain size, prior to operation, to commission an independent test of the quality of ground water for each property in the right-of-way and to file a gas discharge contingency plan that is approved by the State Water Control Board (the Board), introduced by Delegate Chris Hurst)
  • HB 1141 (Directs the State Water Control Board (the Board), regarding interstate natural gas pipeline projects, to (i) require both a Virginia Water Protection Permit and an Individual Water Quality Certification under § 401 of the federal Clean Water Act; (ii) review water body crossings, construction through karst terrain, and plans for control of erosion, sediment, and stormwater; (iii) prohibit any land-disturbing activity, including tree felling, prior to the issuance of a Water Quality Certification; and (iv) require horizontal directional drilling for certain crossings of large water bodies) and HB 1294 (Requires any company that plans to construct an interstate natural gas pipeline in Virginia to post a performance bond with the State Water Control Board (the Board) in an amount sufficient to ensure that the Board could address and remediate any adverse water quality impact that arises out of the construction) introduced by Delegate Sam Rasoul
  • SB 324 (Curtails the ability of a natural gas company to enter upon real property for the purpose of conducting surveys and other tests for its proposed line or the location of facilities – a companion to HB 1187 above) introduced by Senator John Edwards.

2017 in Review

2017 was a busy year in the pipeline fight. Here are some highlights – there are a lot!

On December 30, 2016, FERC released the Draft Environmental Impact Statement (DEIS) for the proposed Atlantic Coast Pipeline. In response to requests from numerous elected officials and organizations, FERC extended the usual 45-day period for public comment so the deadline was April 6, 2017. Over January-March 2017 FERC held public hearings on the DEIS, where the majority of speakers (once beyond Dominion’s front-loaded supporters) pointed out omissions and inaccuracies in the DEIS, as well as numerous instances where Dominion had not provided required information. Thousands of groups and individuals, some property owners along the route and others not, filed comments with FERC.

On January 5, 2017, the Buckingham County Board of Supervisors ignored their constituents so thoroughly that after five hours of testimony almost totally opposed to the ACP compressor station in Buckingham County, they read a PREPARED statement approving the station, having obviously reached their decision well ahead of the meeting. On February 2 a complaint for declaratory relief was filed against the Supervisors and Dominion asking that the special use permit for the station be vacated.

FERC Commissioner Norman Bay resigned on February 3, and with only two remaining commissioners, FERC no longer had a quorum and could not issue decisions.

Judge Michael T. Garrett ruled in Nelson County Circuit Court on February 6, 2017, that Dominion may have access to survey for the proposed ACP on the property of landowners who had steadfastly denied access. The landowners filed a joint notice of appeal with the Virginia State Court of Appeals in early March.

On February 15 Oil Change International released two studies finding that if built, the controversial Mountain Valley and Atlantic Coast pipelines would together contribute as much greenhouse gas pollution as 45 coal-fired power plants — some 158 million metric tons a year. ACP basic facts: http://priceofoil.org/2017/02/15/atlantic-coast-pipeline-greenhouse-gas-emissions-briefing/ ACP full briefing: http://priceofoil.org/content/uploads/2017/02/atlantic_coast_pipeline_web_final_v3.pdf

In mid-March, Friends of Nelson released the Steep Slope Report by Blackburn Consulting Services, which concluded that “Dominion has not adequately identified those soils and landforms that are prone to debris flows (and) landslides.” The report also states that “the potential for debris flows in the very steep mountainous portions of Nelson County is underestimated by the reports submitted to FERC by Dominion.” Steep Slopes Study by Blackburn Consulting:
http://friendsofnelson.com/wp-content/uploads/2017/03/Final-Steep-Slope-Report-March-2017.pdf

On April 5 Friends of Nelson submitted comments to FERC on the DEIS – 96 pages including charts, diagrams, maps, and photos. Read it here: http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20170405-5161

On April 6, Virginia’s Department of Environmental Quality announced that both proposed Virginia pipelines, the ACP and the MVP, would be subject to DEQ water-quality review. This meant that DEQ would require water quality certifications under Section 401 of the federal Clean Water Act for each segment of both projects that crosses or potentially affects water bodies. But the next day, on April 7, 2017, DEQ provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits, thus issuing a blanket Clean Water Act section 401 certification for pipelines that are covered by the U.S. Army Corps of Engineers’ Nationwide Permit number 12. And in late May DEQ said they would not require specific water quality impact analysis for water crossings for the proposed ACP or MVP. On June 5, the Dominion Pipeline Monitoring Coalition (DPMC) filed suit against the DEQ in state Circuit Court for the City of Richmond, asking the court to rule that DEQ issued a Clean Water Act section 401 Water Quality Certification for construction of utility lines, including natural gas pipelines, in state waters without legal authority to do so and without ensuring water quality would be protected.

On April 27, a briefing paper released details on how Dominion intends to blast away, excavate, and partially remove entire mountaintops along 38 miles of Appalachian ridgelines as part of ACP construction, flattening them by anywhere from 10 to 60 feet. See http://friendsofnelson.com/press-release-acp-would-require-extensive-mountaintop-removal/

June 17-July 2: Walking the Line. Group walks the proposed ACP path for 150 miles, through Bath, Augusta and Nelson Counties, into the heart of Virginia, Buckingham County, where the walk ends at Union Hill, the site of the proposed compressor station.

On June 29, 2017, the Virginia Conservation Network, along with its partners Southern Environmental Law Center and Shenandoah Valley Network, sent a letter (signed by over 80 organizations) to Governor McAuliffe, DEQ Director David Paylor and the State Water Control Board asking them to use their full authority under the Clean Water Act to conduct a thorough and transparent review of stream and wetland crossings along the proposed ACP and MVP fracked gas pipeline routes and ensure that Virginia water quality standards are met.

And then there was one: Friday June 30, 2017, was FERC Commissioner Colette Honorable’s final day at FERC. Although a pair of Trump administration nominees remain on the sidelines awaiting Senate votes, Honorable’s a departure leaves the already quorumless panel with a single member.

At their meeting on July 4, members of Wintergreen Property Owners Association voted overwhelmingly for a new covenant prohibiting construction of “any lines, facilities, structures, or other appurtenances related to the transmission of utilities” if they do not provide services to the Association or its members.

The Federal Energy Regulatory Commission issued its final Environmental Impact Statement on the Atlantic Coast Pipeline on July 21, 2017. FERC has 90 days to make a decision on issuing a certificate of approval for the project. The full statement can be found here: https://ferc.gov/industries/gas/enviro/eis/2017/07-21-17-FEIS.asp. The summary statement from FERC staff said, “The FERC staff concludes that construction and operation of ACP and SHP would result in some adverse effects,” but that with adherence to mitigation measure and FERC staff recommendations “most, but not all of these impacts, would be reduced to less-than-significant levels.” FERC said their determinations were based on information provided by Dominion and ACP, with no mention of extensive contradictory information filed by a variety of experts.

Also on July 21, the U.S. Forest Service issued a draft Record of Decision to authorize the use and occupancy of National Forest System lands for the Atlantic Coast Pipeline. The Forest Service release statement is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551404.pdf.

In July Friends of Nelson posted interactive maps showing the ACP route through Nelson County. See http://friendsofnelson.com/information-resources/maps/

Through August, DEQ held public hearings to receive comments on draft water quality certifications designed to protect water quality along the routes of the proposed ACP and MVP.

On August 3, 2017, the Senate voted to confirm Donald Trump’s nominees for the Federal Energy Regulatory Commission (FERC), Neil Chatterjee and Rob Powelson. They join Cheryl LaFleur, who had been the sole member of the five member commission, so FERC now has a quorum.

In mid-August, Friends of Nelson submitted extensive comments to DEQ on the proposed 401 Water Quality Certifications for the ACP. See http://friendsofnelson.com/friends-of-nelson-submits-comments-to-deq/ And a group of thirteen expert scientists and engineers submitted reports to the DEQ on August 22, finding that DEQ has failed in its duty to properly analyze and protect against the water quality damages the Mountain Valley Pipeline and Atlantic Coast Pipeline would cause to Virginia’s waters. See http://friendsofnelson.com/failure-to-meet-minimum-standards-of-scientific-proof/

On August 22, the Virginia Supreme Court agreed without argument to hear on appeal the survey suit against the ACP brought on behalf of six Nelson residents by Lollar Law. Briefings will take place in autumn 2017, and the oral arguments before the full seven-justice court will take place in late 2017 or early 2018. See http://friendsofnelson.com/virginia-supreme-court-to-hear-survey-case/

On August 22 in a 2-1 ruling, the Court of Appeals for the District of Columbia Circuit found that the Federal Energy Regulatory Commission (FERC) did not properly analyze the climate impact from burning the natural gas that a Florida pipeline project would deliver to power plants.

A lawsuit, filed September 5 in Washington D.C. federal district court, on behalf of 57 Landowners, Bold Alliance and Friends of Nelson, challenged the constitutionality of the eminent domain provisions of the Natural Gas Act, and seeking to end the unconstitutional and unconscionable process of taking citizens’ private property via eminent domain for a corporation’s profits — and not for “the public good” as the Constitution intended.

September 15-17: No Pipeline Action Camp held in Nelson County, sponsored by Friends of Nelson, Greenpeace, and Blue Ridge Rapid Response.

In mid-September North Carolina delayed by three months its decision on certification of the proposed Atlantic Coast Pipeline under section 401 of the federal Clean Water Act. This followed West Virginia’s September 7 announcement that the state was vacating its water quality certification for the proposed MVP in order to reevaluate. Virginia’s DEQ pressed ahead, even as other states hit the brakes.

In late September, Dan Weekley, Dominion Energy’s vice president and general manager of Southern pipeline operations, told attendees at an energy conference ‘everybody knows’ the Atlantic Coast Pipeline — currently slated to pass through Virginia, West Virginia and North Carolina — is not going to stop there, despite what the current plans say, and that the ACP will be extended into South Carolina.

The NC DEQ disapproved the erosion and sedimentation control plan submitted to the agency by the ACP, Their September 26, 2017, letter of disapproval, cites 17 specific deficiencies in the submitted plan as grounds for disapproval.

Late on Friday evening October 13, FERC approved both the ACP and the MVP. Authorization had been widely expected by both supporters and opponents of the pipelines. The certificates granted by the commission came with dozens of conditions, and other necessary permits for both projects are still pending. The approval was issued with a highly unusual dissenting opinion by Commissioner Cheryl A. LaFleur. The FERC permit is not the final word on the projects. VA, NC and WV must still issue environmental permits.

Meeting in Richmond on October 16, the Virginia Outdoors Foundation (VOF) voted to approve Dominion’s application for 11 land conversions of open-space easements on the route of the proposed ACP through southern Highland, northern Bath, Augusta and Nelson counties, and approved a single swap for the proposed Mountain Valley Pipeline near Roanoke.

On October 18 Dominion released a proposed construction plan, see http://friendsofnelson.com/wp-content/uploads/2017/10/Dominion-construction-plan20171018-5002-32464467.pdf, When they sent their original “we want your land” letters in spring 2014, Dominion planned to start construction of the ACP in the Fall of 2016 and have the pipeline in service sometime early in 2018. But Dominion did not expect so many people and organizations to fight back!

On November 2, 2017, the Senate approved Trump’s final two nominees to FERC, giving the Commission the full five members for the first time in two years.

On November 13, a motion was filed with the Federal Energy Regulatory Commission (FERC) requesting a rehearing of the Commission’s order issuing a certificate for the Atlantic Coast Pipeline. The petition, filed on behalf of 22 organizations (including Friends of Nelson) and 10 individuals. See https://www.abralliance.org/wp-content/uploads/2017/11/Petition_for_Rehearing_to_FERC_20171113.pdf.

On November 14 Friends of Nelson filed a Request for Rehearing with the Federal Energy Regulatory Commission (FERC) on FERC’s decision to issue a Certificate of Convenience and Necessity for the Atlantic Coast Pipeline. The filing is on behalf of 63 property owners and citizens of Nelson County, and 4 community organizations.

The NAACP released a report on November 14, Fumes Across the Fence Line: The Health Impacts of Air Pollution from Oil & Gas Facilities on African American Communities. “The life-threatening burdens placed on communities of color near oil and gas facilities are the result of systemic oppression perpetuated by the traditional energy industry, which exposes communities to health, economic, and social hazards. Communities impacted by oil and gas facility operations remain affected due to energy companies’ heavy polluting, low wages for dangerous work, and government lobbying against local interests.”

On November 17, the US Forest Service released a final Record of Decision (ROD) approving amendments to the Forest Plans for the Monongahela National Forest and the George Washington National Forest to accommodate the Atlantic Coast Pipeline (ACP).

Late in the afternoon on December 7, 2017, after two days of hearings, the Virginia State Water Control Board approved water quality certification for the Mountain Valley Pipeline. The vote was 5-2, with members Roberta Kellam and G. Nissa Dean dissenting.

On December 12, 2017, the Virginia State Water Control Board voted 4 to 3 to approve certification under Section 401 of the Clean Water Act the Atlantic Coast Pipeline. However, the approval does not immediately grant the 401 water permits requested by Dominion; it is subject to certain conditions and to information which must be provided by the ACP. The permit can’t take effect until several additional studies are reviewed and approved by DEQ, including soil and erosion control plans and stormwater management plans. Although this is not an outright denial of the permits, it does not allow Dominion to move forward at this time.

SO…. As we move into fourth year of the pipeline fight, we know the ACP is closer to receiving all final approvals, but we continue our work to stop this economically unnecessary and environmental damaging project. Legal challenges to some approvals have already been filed, more are being evaluated. No, the pipeline is NOT a done deal.